National Post (National Edition)
Trump sparks legal war over ‘national emergency’
President cites ‘invasion’ at southern border
WASHINGTON• Let the lawsuits begin. U.S. President Donald Trump declared a national emergency along the southern border Friday and predicted his administration would end up defending it all the way to the Supreme Court.
The American Civil Liberties Union announced its intention to sue less than an hour after the White House released the text of Trump’s declaration that the “current situation at the southern border presents a border security and humanitarian crisis that threatens core national security interests and constitutes a national emergency.”
House Speaker Nancy Pelosi and several Democratic state attorneys general already have said they might go to court. In a press conference in the Rose Garden, Trump framed his move as an effort to block illegal migration, which he insisted brings a steady flow of drugs, violence and crime. “It’s been signed many times before.
It’s been signed by other presidents,” Trump said. “They signed it for far less important things, in some cases — in many cases. We’re talking about an invasion of our country with drugs, with human traffickers, with all types of criminals and gangs.”
The move had congressional Democrats on a war footing.
“The president’s unlawful declaration over a crisis that does not exist does great violence to our constitution and makes America less safe, stealing from urgently needed defence funds for the security of our military and our nation,” Pelosi and Senate Democratic Leader Chuck Schumer said in a statement.
“The president is not above the law. The Congress
cannot let the president shred the constitution.”
The coming legal fight seems likely to hinge on two main issues: Can the president declare a national emergency to build a border wall in the face of Congress’ refusal to give him all the money he wanted and, under the federal law Trump invoked in his declaration, can the Defence Department take money from some congressionally approved military construction projects to pay for wall construction?
Trump relied on the National Emergencies Act of 1976, which Congress adopted as a way to put some limits on presidential use of national emergencies.
The act requires a president to notify Congress publicly of the national emergency and to report every six months. The law also says the president must renew the emergency every year, simply by notifying Congress.
The House and Senate also can revoke a declaration by majority vote, though it would take a two-thirds vote by each house to override an expected presidential veto.
Beyond that, though, the law doesn’t say what constitutes a national emergency or impose any other limits on the president.
The broad grant of discretion to the president could make it hard to persuade courts to rule that Trump exceeded his authority in declaring a border emergency. “He’s the one who gets to make the call. We can’t second- guess it,” said John Eastman, a professor of con--
stitutional law at the Chapman University School of Law.
Courts often are reluctant to look beyond the justifications the president included in his proclamation, Ohio State University law professor Peter Shane said on a call organized by the liberal American Constitution Society.
But other legal experts said the facts are powerfully arrayed against the president. They include government statistics showing a decades- long decline in illegal border crossings as well as Trump’s rejection of a deal last year that would have provided more than the nearly US$1.4 billion he got for border security in the budget agreement he signed Thursday.
Opponents of the declaration also are certain to use Trump’s own words at his Rose Garden news conference Friday to argue that there is no emergency on the border.
“I could do the wall over a longer period of time,” Trump said. “I didn’t need to do this, but I’d rather do it much faster.”
Republican Rep. Justin Amash of Michigan said Congress made a conscious choice not to give Trump what he wanted. “A prerequisite for declaring an emergency is that the situation requires immediate action and Congress does not have an opportunity to act,” Amash said on Twitter.
ACLU executive director Anthony Romero said Trump’s remarks are an admission that there is no national emergency. “He just grew impatient and frustrated with Congress,” Romero said in a statement that also said the rights group would file a lawsuit next week.